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UNITED STATES COURT OF APPEALS
for the
THIRD CIRCUIT
Case No. 13-1952
CONSTITUTION PARTY OF PENNSYLVANIA, GREEN PARTY OF PENNSYLVANIA,LIBERTARIAN PARTY OF PENNSYLVANIA, JOE MURPHY, JAMES CLYMER, CARL
ROMANELLI, THOMAS ROBERT STEVENS AND KEN KRAWCHUK,
Appellants,
- v. -
CAROL AICHELE, JONATHAN M. MARKS AND LINDA L. KELLY,
Appellees.
ON APPEAL FROM AN ORDER ENTERED IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA AT NO 5:12-CV-02726-LS
REPLY BRIEF OF APPELLANTS
Oliver B. HallCENTER FOR COMPETITIVE DEMOCRACYAttorneys for Appellants1835 16th Street NW, Suite 5Washington, D.C. 20009(202) 248-9294 (ph)(202) 248-9345 (fx)[email protected]
TABLE OF CONTENTSINTRODUCTION............................................................................................
ARGUMENT................................................................................…................
I. The Secretary Misstates Several Key Points of Law and Fact and Misrepresents the Narrow Question Raised By This Appeal.................
II. Reversal Is Proper Because It Is Undisputed That the District Court Applied the Wrong Standard in Dismissing This Case Under Rule 12(b)(1), and the Secretary Fails to Provide Any Basis for This Court to Affirm That Error................................................................................
A. The District Court Applied the Wrong Standard in Dismissing ThisCase Under Rule 12(b)(1).................................................................
B. The Secretary Fails to Provide Any Basis for This Court to Affirm the District Court’s Error in Applying the Wrong Standard Under Rule 12(b)(1).....................................................................................
III.The Minor Parties Are Entitled to Seek Declaratory Relief Because This Case Presents a Justiciable Controversy.........................................
IV.The Minor Parties Satisfy Basic Standing Requirements.......................
V. The Minor Parties’ Claims Were Ripe When This Action Was Filed.....
VI. The Secretary Fails to Remedy the District Court’s Error in Dismissing the Minor Parties’ Claim That Section 2937 Is Unconstitutional on Its Face...................................................................
CONCLUSION.................................................................................................
CERTIFICATE OF BAR MEMBERSHIPCERTIFICATE OF COMPLIANCECERTIFICATE OF SERVICE
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TABLE OF CITATIONS
Ashcroft v. Iqbal,556 U.S. 662 (2009).................................................................................10,11
Askew v. Church of the Lord Jesus Christ, 684 F.3d 413 (3rd Cir. 2012)...................................................................7,8,11
Belitskus v. Pizzingrilli, 343 F.3d 632 (3rd Cir. 2003).........................................................................16
Biener v. Calio, 361 F.3d 206 (3rd Cir. 2004).........................................................................14
Burtch v. Milberg Factors, Inc., 662 F.3d 212 (3rd Cir. 2011).........................................................................11
Clean-Up ’84 v. Heinrich, 590 F. Supp. 928 (M.D. Fl. 1984).................................................................13
CNA v. United States, 535 F.3d 132 (3rd Cir. 2008)...........................................................................7
Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992)………………………………………..........13
Gould Elecs., Inc. v. United States, 220 F.3d 169 (3rd Cir. 2000)...........................................................................9
In Re Nomination Paper of Virgil H. Goode, No. 508 M.D. 2012 (Pa. Commw. 2012)........................................................3
In re: Nomination Papers of Marakay Rogers, No. 426 M.D. 2006 (Pa. Commw. 2006)......................................................15
In Re Nomination Paper of Margaret K. Robertson, No. 507 M.D. 2012 (Pa. Commw. 2012)........................................................3
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In Re: Schering-Plough Corp., 678 F.3d 235 (3rd Cir. 2012)...........................................................................9
Khodara Environmental, Inc. v. Blakey, 376 F.3d 187, 196 (3rd Cir. 2004).................................................................17
Libertarian Party of Los Angeles v. Bowen, No. 11-55316 (9th Cir. Feb. 25, 2013)..........................................................16
McAuley v. University of Virgin Islands, 618 F.3d 232 (3rd Cir. 2010)....................................................................18,19
McLaughlin v. North Carolina Board of Elections, 850 F. Supp. 373 (M.D. N.C. 1994)………………………………………..13
Mortensen v. First Federal Savings and Loan Assoc., 549 F.2d 884, 891 (3rd Cir. 1977)..........................................................passim
Rogers v. Corbett, 468 F.3d 188 (3rd Cir. 2006)...........................................................................5
Ruocchio v. United Transport Union, 181 F.3d 376 (3rd Cir. 1999).........................................................................18
Peachlum v. City of York, 333 F.3d 429 (3rd Cir. 2003)………………………………….……............18
Republican Party of Arkansas v. Faulkner County, 49 F.3d 1289 (8th Cir. 1995)…………………………………….…………13
The St. Thomas-St. John Hotel & Tourism Ass’n. v. Virgin Islands, 218 F.3d 232 (3rd Cir. 2000)………………………………….…….......13,15
Toll Bros., Inc. v. Township of Readington, 555 F.3d 131 (3rd Cir. 2009).........................................................................17
U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506 (3d Cir. 2007).............................................................................7
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Statutes and Rules
Fed. R. Civ. P. 12(b)(1)....................................................................................passim
Fed. R. Civ. P. 12(b)(6)..............................................................................................6
Fed. R. App. P. 43(c)..................................................................................................1
25 P.S. § 2911(b)…………………………………………………………......passim
25 P.S. § 2936………………………………………………………….…......passim
25 P.S. § 2937……………………………………………………….………..passim
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Appellants Constitution Party of Pennsylvania (“CPPA”), Green Party of
Pennsylvania (“GPPA”), Libertarian Party of Pennsylvania (“LPPA”), Joe Murphy,
James Clymer, Carl Romanelli, Thomas Robert Stevens and Ken Krawchuk
(collectively, the “Minor Parties”) respectfully submit this Reply to the brief filed
by Appellees Carol Aichele, Jonathan M. Marks and Linda L. Kelly (collectively,
“the Secretary”) on November 15, 2013 (“Sec. Br.”).1
INTRODUCTION
The only issue to be decided in this appeal is whether the District Court
erred in dismissing the Minor Parties’ Complaint for lack of standing, and on that
issue there is no dispute. The Secretary concedes, as she must, that the District
Court incorrectly treated her motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) as asserting a factual challenge, and not a facial challenge, to
the Minor Parties’ standing. The Secretary also concedes that, as a result of this
error, the District Court applied the wrong standard in granting the motion. The
Secretary contends, however, that the District Court’s error “does not matter” to the
proper disposition of this case. That is incorrect. By expressly rejecting the Minor
Parties’ undisputed allegations and disregarding the evidence they submitted in
1 The Minor Parties do not object to the substitution of current Attorney General Kathleen G. Kane for her predecessor, Carol Aichele, pursuant to Fed. R. App. P.43(c). The Minor Parties will continue to refer to all Appellees by the term “Secretary,” however, because that abbreviation is not misleading or improper.
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support of their Complaint, the District Court violated the cardinal rule governing
motions to dismiss under Rule 12(b)(1). It therefore must be reversed.
ARGUMENT
I. The Secretary Misstates Several Key Points of Law and Fact and Misrepresents the Narrow Question Raised By This Appeal.
Throughout her brief, the Secretary misstates several key points of law and
fact, in an apparent attempt to confuse or complicate the issues raised by this
appeal. As a preliminary matter, therefore, these misstatements require correction.
First, the Secretary mischaracterizes the legal theory on which the Minor
Parties rely in this case. Contrary to the Secretary’s assertion, the “essence” of the
Minor Parties’ claims is not that their rights are violated by the “possibility” that
costs will be imposed against them following a successful challenge to their
nomination petitions. Sec. Br. at 8. Rather, as set forth at the outset of their
Complaint, the Minor Parties’ legal theory is that Pennsylvania’s ballot access
scheme is unconstitutional because it requires their candidates both to submit
nomination petitions pursuant to 25 P.S. § 2911(b), and to shoulder the financial
burden of validating them pursuant to 25 P.S. § 2937. JA 31-32. Count I and Count
II expressly rely on that allegation, JA 47, 48 (Comp. ¶¶ 55, 63), and
notwithstanding the Secretary’s repeated assertions, there is nothing “conjectural”
or “hypothetical” about it. Sec. Br. at 34-36. Each time the Minor Parties submit
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nomination petitions as required by Section 2911(b), the Minor Parties – and not
the Secretary – have the statutory obligation to verify their validity when a
challenge is filed pursuant to Section 2937. JA 38 (Comp. ¶¶ 21-21) (citing 25 P.S.
§ 2936). As the record amply demonstrates, Pennsylvania’s statutory scheme thus
imposes substantial burdens on the Minor Parties, in addition to the threat that they
may be ordered to pay their challengers’ costs pursuant to Section 2937. For
example, while this case was pending before the District Court, both CPPA and
LPPA were ordered to supply 20 workers on a daily basis, at their own expense, to
validate their 2012 nomination petitions. See In Re Nomination Paper of Virgil H.
Goode, No. 508 M.D. 2012 (Pa. Commw. 2012) (order entered August 10, 2012 in
CPPA challenge); In Re Nomination Paper of Margaret K. Robertson, No. 507
M.D. 2012 (Pa. Commw. 2012) (order entered August 10, 2012 in LPPA
challenge). Because the District Court did not rule on their emergency motion for
preliminary injunctive relief, this financial burden forced CPPA to withdraw from
the election, despite its belief in the validity of its nomination petitions. See Third
Clymer Dec. ¶¶ 7-14 (Dckt. No. 23-1).
To be sure, the Minor Parties also allege, in Count III, that the imposition of
costs pursuant to Section 2937 violates their rights by threatening to impose
substantial financial burdens on them for engaging in quintessentially protected
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First Amendment conduct. JA 48-49 (Comp. ¶¶ 66-72). But while this threat
provides the basis for the Minor Parties’ claim that Section 2937 is unconstitutional
on its face, it does not constitute the entire legal basis for all of their claims in this
case, and the Secretary has no basis for insisting that it does. The Secretary simply
invites this Court to commit the same error as the District Court, by disregarding
undisputed evidence in the record demonstrating that Pennsylvania’s ballot access
scheme burdens the Minor Parties whether or not they are ordered to pay their
challengers’ costs pursuant to Section 2937.
Second, the Secretary misleadingly asserts that this case is “the latest of
several attempts” to challenge the constitutionality of Section 2911(b) and Section
2937. Sec. Br. at 21. But none of the cases the Secretary cites involved the claims
alleged herein, nor did any one of them address the legal theory on which the
Minor Parties rely. Sec. Br. at 11-14 (citing cases). Simply put, no court has ever
heard, much less ruled upon, the Minor Parties’ claims that Pennsylvania’s ballot
access scheme is unconstitutional as applied, because it requires the Minor Parties
to submit nomination petitions and shoulder the financial burden of validating
them, nor that Section 2937 is unconstitutional on its face, because it authorizes the
imposition of substantial financial burdens on parties who engage in
quintessentially protected First Amendment conduct. JA 46-49 (Comp. ¶¶ 48-72).
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Any suggestion that the Minor Parties’ claims have already been adjudicated on the
merits is therefore incorrect. In particular, the Secretary’s repeated assertion that
“the constitutionality of § 2911(b) is not open to debate” is incorrect. Sec. Br. at
23, 40 (citing Rogers v. Corbett, 468 F.3d 188 (3rd Cir. 2006). Like the other cases
the Secretary cites, Rogers arose from different facts and relied on a different legal
theory, and it does not in any way foreclose the claims the Minor Parties assert
herein.
Third, and finally, the Secretary misrepresents the issue raised by this appeal.
According to the Secretary, the Minor Parties “want this Court to exempt them
from § 2911(b) … and § 2937.” Sec. Br. at 22. That is incorrect. The District Court
dismissed this case under Rule 12(b)(1), on the ground that the Minor Parties lack
standing, and consequently it did not reach the merits of the Minor Parties’ claims.
JA 19. The narrow question presented by this appeal, therefore, is only whether the
Minor Parties have standing to challenge the constitutionality of Pennsylvania’s
ballot access scheme. Whether the challenged provisions are in fact
unconstitutional is a separate issue entirely. Because the District Court did not
reach that issue, it is neither necessary nor proper for this Court to do so. For the
reasons that follow, however, this Court can and should reverse the District Court’s
decision holding that the Minor Parties lack standing to pursue this action.
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II. Reversal Is Proper Because It Is Undisputed That the District Court Applied the Wrong Standard in Dismissing This Case Under Rule 12(b)(1), and the Secretary Fails to Provide Any Basis for This Court to Affirm That Error.
The Secretary does not dispute that her motion to dismiss pursuant to Rule
12(b)(1) asserts a facial challenge, and not a factual challenge, to the Minor
Parties’ standing. The Secretary also concedes that the District Court incorrectly
treated the Secretary’s facial challenge as a factual challenge. The Secretary
contends, however, that the District Court’s error “does not matter,” because the
distinction between facial challenges and factual challenges is only a matter of
“terminology,” which has no legal significance to the proper disposition of this
case. Sec. Br. at 24, 27. The Secretary is incorrect.
A. The District Court Applied the Wrong Standard in Dismissing This Case Under Rule 12(b)(1).
Contrary to the Secretary’s contention, this Court has long recognized that
the distinction between facial challenges and factual challenges to a plaintiff’s
standing is “crucial,” because it determines the standard of review a court must
apply in ruling on a motion to dismiss under Rule 12(b)(1). See Mortensen v. First
Federal Savings and Loan Assoc., 549 F.2d 884, 891 (3rd Cir. 1977). In ruling on a
facial challenge, a court applies the standard governing motions to dismiss under
Rule 12(b)(6), and “must consider the allegations of the complaint as true.” Id. By
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contrast, a court ruling on a factual challenge is permitted to “weigh the evidence
and satisfy itself as to the existence of its power to hear the case.” Id. This differing
standard of review is proper because a facial challenge “concerns ‘an alleged
pleading deficiency’ whereas a factual attack concerns ‘the actual failure of a
plaintiff’s claims to comport factually with the jurisdictional prerequisites.’” CNA
v. United States, 535 F.3d 132, 139 (3rd Cir. 2008) (quoting U.S. ex rel. Atkinson v.
Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007)).
This Court recently reaffirmed the propriety of the distinction between facial
challenges and factual challenges under Rule 12(b)(1), as well as the differing
standards of review that apply in each instance. See Askew v. Church of the Lord
Jesus Christ, 684 F.3d 413 (3rd Cir. 2012). In Askew, an individual who claimed to
be a member of a church asserted several claims against the church leaders, based
on their alleged misappropriation of assets and breach of fiduciary duties. See id. at
415. The defendants moved to dismiss pursuant to Rule 12(b)(1). See id. at 417.
Because they had not answered and no discovery had been taken, the District Court
treated the defendants’ motion as asserting a facial challenge to the plaintiff’s
standing, and took as true his allegation that he was a member of the church. See
id. Thus, while the District Court granted dismissal of several counts unrelated to
the plaintiff’s alleged status as a church member, it denied the defendants’ motion
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with respect to those counts the plaintiff asserted on behalf of the church, and
ordered the parties to engage in discovery on the plaintiff’s claim to be a church
member. See id. Only after the defendants filed a renewed motion to dismiss did
the District Court consult the evidence adduced by the parties and conclude that the
plaintiff lacked standing to assert his remaining claims, based on its determination
that he was not in fact a member of the church. See id. This Court affirmed in all
respects. See id. at 421.
When the analysis in Askew is applied here, the District Court’s error in
dismissing this case under Rule 12(b)(1) is readily apparent. Unlike Askew, this
case does not present any question of fact that would require the District Court to
weigh evidence to determine its power to hear the Minor Parties’ claims. The
Secretary does not contend, for example, that the Minor Parties are actually
residents of New Jersey, such that they might never actually incur the burdens
imposed by Pennsylvania’s ballot access scheme. Further, even if the Secretary had
raised such an issue, no defendant has filed an answer, and the District Court has
not allowed the parties to engage in discovery for purposes of settling the factual
dispute. Consequently, the District Court’s determination that the Secretary asserts
a factual challenge to the Minor Parties’ standing is incorrect. See Askew, 684 F.3d
at 417; see also Mortenson, 549 F.2d at 892 n.17 (“a factual jurisdictional
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proceeding cannot occur until plaintiff’s allegations have been controverted”).
Because the Secretary asserts a facial challenge under Rule 12(b)(1), and not
a factual challenge, the District Court was obliged to accept as true all allegations
in the Minor Parties’ Complaint and the sworn Declarations attached thereto. JA
31-97; see Mortenson, 549 F.2d at 891. The District Court failed to do so. Instead,
it expressly rejected the Minor Parties’ factual allegations as “conjectural or
hypothetical,” JA 16, without even addressing the supporting evidence set forth in
their Declarations, which includes numerous specific examples of Minor Party
candidates who were forced to withdraw from elections under financial duress,
based in some instances on explicit threats from their political opponents. JA 51-
97. The District Court summarily disposed of this evidence on the ground that it
was “not persuaded,” JA 17, but the District Court was not permitted to make such
a determination. On the contrary, by rejecting the Minor Parties’ allegations and
disregarding their evidence, the District Court applied an improper standard under
Rule 12(b)(1), and it should be reversed on that basis. See Mortenson, 549 F.2d at
891; see also In Re: Schering-Plough Corp., 678 F.3d 235, 243 (3rd Cir. 2012)
(citing Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3rd Cir. 2000)).
B. The Secretary Fails to Provide Any Basis for This Court to Affirm the District Court’s Error in Applying the Wrong Standard Under Rule 12(b)(1).
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The Secretary’s contention that this Court should affirm dismissal of this
case, even though the District Court applied the wrong standard under Rule 12(b)
(1), has no merit. Sec. Br. at 24-27. The Secretary asserts three points in support of
this view, none of which are availing.
First, the Secretary asserts that the District Court was not required to credit
“bald assertions” or “legal conclusions” alleged in the Minor Parties’ Complaint
and Declarations. Sec. Br. at 25 (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). As
the Secretary acknowledges, however, Iqbal does not address the pleading standard
that applies under Rule 12(b)(1), but rather concerns the sufficiency of the facts
alleged to support a claim that the Attorney General of the United States was
personally liable for the unconstitutional conditions of a prisoner’s confinement.
The relevance of Iqbal’s reasoning to the instant case, which seeks prospective
declaratory relief from certain provisions of election law, is therefore questionable.
Furthermore, although the Secretary asserts that the Minor Parties’
Complaint was “peppered” with the sorts of allegations that may be disregarded
under Iqbal, she conspicuously fails to identify a single one. Sec. Br. at 25. For
example, the Secretary does not and cannot dispute the Minor Parties’ allegation
that Pennsylvania’s ballot access scheme burdens them by forcing them to shoulder
the financial burden of validating nomination petitions they are required by law to
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submit. JA 31-32, JA 46-48 (Comp. ¶¶ 48-65); see 25 P.S. §§ 2911(b), 2936, 2937.
Nor does the Secretary identify any specific allegation of injury in the Minor
Parties’ Complaint and Declarations, JA 44-46 (Comp. ¶¶ 40-47), which the
Secretary believes the District Court was permitted to “identify but disregard.” Sec.
Br. at 25 (citing Burtch v. Milberg Factors, Inc., 662 F.3d 212 (3rd Cir. 2011)). The
Minor Parties’ allegations that they intend to submit nomination petitions in future
elections are likewise undisputed. JA 34-35 (Comp. ¶¶ 5, 6, 8); JA 44-45 (Comp. ¶
42). Consequently, even if the Iqbal analysis were stretched to apply in the context
of this case, the Secretary’s sweeping assertion that “all” of the Minor Parties’
allegations of jurisdictional facts are “beside the point” cannot be squared with the
record. Sec. Br. at 25.
The Secretary next asserts that the Minor Parties themselves “transformed”
the Secretary’s standing challenge “from ‘facial’ to ‘factual,’” when they filed their
emergency motion for preliminary injunctive relief. Sec. Br. at 26. This novel
assertion is wrong as a matter of law. As this Court has repeatedly recognized,
courts may not treat Rule 12(b)(1) motions as asserting a factual challenge unless
and until the defendant files an answer and the parties are permitted to take
discovery on disputed issues of fact. See Askew, 684 F.3d at 417; Mortenson, 549
F.2d at 892 n.17. At most, therefore, the District Court was permitted on this record
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to deny the Minor Parties’ motion for preliminary injunctive relief – but not to
dismiss their entire Complaint, including claims for prospective declaratory relief,
pursuant to Rule 12(b)(1).
The Secretary’s last purported justification for the District Court’s error in
applying the wrong standard under Rule 12(b)(1) is unclear, but the gist seems to
be that the District Court did not “disadvantage” the Minor Parties by “ignoring”
the allegations in their Complaint. Sec. Br. at 27. On the contrary, the prejudice
arising from such an error is obvious: the District Court dismissed the Minor
Parties’ claims without permitting them a hearing on the merits, on the ground that
it was “not persuaded” by their allegations and evidence. JA 16. The Minor Parties
addressed this issue supra at Part II.A, and it need not be revisited.
In sum, none of the Secretary’s assertions provide grounds for this Court to
affirm the District Court’s erroneous decision. Reversal is therefore warranted.
III.The Minor Parties Are Entitled to Seek Declaratory Relief Because ThisCase Presents a Justiciable Controversy.
In their opening brief, the Minor Parties cite a long line of precedent, rooted
in the Supreme Court’s decisions striking down poll taxes and mandatory filing
fees, which hold that states may not require candidates, voters or political parties to
pay for the state’s own legislative choices in regulating elections. See Minor
Parties’ Br. at 23 (citing cases). The Minor Parties rely on this precedent because it
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establishes that their own claims present a “substantial controversy” that warrants
declaratory relief, rather than “abstract, contingent or hypothetical questions.” The
St. Thomas-St. John Hotel & Tourism Ass’n. v. Virgin Islands, 218 F.3d 232, 240
(3rd Cir. 2000). Just as states may not require major parties to hold and pay for
primary elections, for example, see Republican Party of Arkansas v. Faulkner
County, 49 F.3d 1289 (8th Cir. 1995), states also may not require minor party and
independent candidates to submit nomination petitions and pay the costs of
validating them. See Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992);
McLaughlin v. North Carolina Board of Elections, 850 F. Supp. 373 (M.D. N.C.
1994); Clean-Up ’84 v. Heinrich, 590 F. Supp. 928 (M.D. Fl. 1984). Because
Pennsylvania’s statutory scheme imposes a similar burden as the provisions held
unconstitutional in Fulani, McLaughlin and Clean-Up ‘84, the Minor Parties
contend that their claims present a justiciable controversy.
In opposing this line of reasoning, the Secretary starts from a false premise.
The Minor Parties do not rely on the cases cited in their opening brief merely
because they were decided “in favor of voters and candidates,” as the Secretary
suggests. Sec. Br. at 32. Rather, each of those cases supports the legal theory the
Minor Parties assert in this case: that Pennsylvania’s statutory scheme violates the
Constitution by requiring candidates both to submit nomination petitions and
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shoulder the expense of validating them. Consequently, the Secretary’s citation to a
number of cases asserting other constitutional theories, simply because voters and
candidates apparently did not prevail, is not relevant. Sec. Br. at 33.
The Secretary does cite a single case that is relevant to the Minor Parties’
claims, but that case only reinforces the conclusion that this case presents a
justiciable controversy. See Biener v. Calio, 361 F.3d 206 (3rd Cir. 2004). Biener
upheld a statute imposing a primary election filing fee, which provided an
exception for indigent candidates. See id. Crucially, however, the case was decided
on summary judgment – after this Court held that the plaintiff had standing to
challenge to statute, based on the financial injury he incurred in complying with it.
See id. at 210-11. Here, too, the Minor Parties’ allegations of financial injury are
sufficient to confer standing on them to seek declaratory relief.
The Secretary also insists that the Minor Parties do not have “adverse
interests” with each of the named defendants, and specifically objects to inclusion
of the Attorney General in this action, on the ground that “the Attorney General
does not have a discrete role in administering the Pennsylvania Election Code.”
Sec. Br. at 33. This contention directly contradicts the position the Attorney
General asserted in another election law case. “The Commonwealth has an interest
in defending the validity of the Election Code and other statutes which are subject
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to a constitutional challenge in either state or federal courts,” the Attorney General
asserted. Amicus Brief on Behalf of the Commonwealth of Pennsylvania 2, In re:
Nomination Papers of Marakay Rogers, No. 426 M.D. 2006 (Pa. Commw. 2006).
By definition, that “interest” is adverse to the interest of litigants, such as the
Minor Parties, who bring such a challenge. Therefore, the parties in this case have
adverse interests.
The adversity of interests between the Minor Parties and Secretary Aichele
and her subordinate, Commissioner of Elections Marks, is even clearer. As the
Secretary concedes, both of these officials administer the Election Code. Sec. Br. at
34. Further, Secretary Aichele is specifically charged with reviewing nomination
petitions the Minor Parties must submit pursuant to Section 2911(b) for
compliance with applicable statutory requirements. See 25 P.S. § 2936. Because the
Minor Parties challenge the constitutionality of Section 2911(b), their interests are
adverse to those of Secretary Aichele and Commissioner Marks.
Finally, the Secretary objects that the Minor Parties’ claims lacked
“sufficient immediacy and reality” when they were filed in 2012. Sec. Br. at 34
(quoting The St. Thomas-St. John Hotel & Tourism Ass’n., 218 F.3d at 240).
Relying on a rote recitation of supposed “contingencies” and “uncertainties,” the
Secretary insists that it is “impossible” to conclude that the Minor Parties
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“confronted a real, immediate problem that warranted judicial intervention.” Sec.
Br. at 34-35. The glaring fact remains, however, that CPPA and LPPA both actually
sustained the injury they sought to avoid by filing this action for prospective relief,
while this case was pending, because the District Court declined to rule on their
emergency motion for preliminary relief. See Third Clymer Dec. ¶¶ 7-14 (Dckt.
No. 23-1). Plainly, therefore, the Minor Parties confronted a problem of sufficient
immediacy to warrant judicial intervention. See, e.g., Libertarian Party of Los
Angeles v. Bowen, No. 11-55316 (9th Cir. Feb. 25, 2013) (plaintiff’s concrete plan
to violate law and defendants’ specific warning of enforcement satisfied case or
controversy requirement).
IV.The Minor Parties Satisfy Basic Standing Requirements.
Only one additional point is necessary to rebut the Secretary’s attack on the
Minor Parties’ standing. As this Court has recognized, the injury-in-fact element of
standing is satisfied where a plaintiff alleges “an ‘identifiable trifle’ of harm.”
Belitskus v. Pizzingrilli, 343 F.3d 632 (3rd Cir. 2003). The allegations in the
Complaint surely satisfy this test. JA 44-46 (Comp. ¶¶ 40-47). Pennsylvania’s
statutory scheme has injured the Minor Parties in past elections, it injured them in
the 2012 election that took place while this case was pending in the District Court,
and it will certainly injure them again, because it obliges them to shoulder the
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financial burden of validating nomination petitions they are required by law to
submit. See 25 P.S. §§ 2911(b), 2937. The Minor Parties have therefore alleged
sufficient facts to establish their standing to challenge the constitutionality of that
statutory scheme. See Toll Bros., Inc. v. Township of Readington, 555 F.3d 131, 138
(3rd Cir. 2009) (acknowledging that satisfaction of injury-in-fact element “is often
determinative” of standing).
As to the elements of causation and redressability, the Minor Parties rest on
their opening brief.
V. The Minor Parties’ Claims Were Ripe When This Action Was Filed.
The Secretary purports to challenge the justiciability of this action on
ripeness grounds, but offers precious little to support her conclusion that the Minor
Parties filed this case “at an inappropriate time.” Sec. Br. at 44. In fact, much of the
black-letter law the Secretary quotes at length actually supports the opposite
conclusion – that the Minor Parties’ claims were ripe for adjudication when they
were filed. E.g., Sec. Br. at 43 (“declaratory judgments are typically sought before
a completed injury has occurred”) (quoting Khodara Environmental, Inc. v. Blakey,
376 F.3d 187, 196 (3rd Cir. 2004). Further, the Secretary all but concedes that her
discussion of ripeness adds little to her prior discussion of standing in the
declaratory judgment context. Sec. Br. at 44. Accordingly, for the same reasons that
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the Minor Parties have standing to seek a declaratory judgment, their claims are
ripe for adjudication.
VI. The Secretary Fails to Remedy the District Court’s Error in Dismissing the Minor Parties’ Claim That Section 2937 Is Unconstitutional on Its Face.
In the proceedings below, the District Court erroneously concluded that, in
ruling on standing, “the identical analysis” applies to all three of the Minor Parties’
claims, including their Count III claim that Section 2937 is unconstitutional on its
face. JA 14. In fact, however, it is well-settled that the doctrine of standing and its
prudential counterparts are relaxed with respect to First Amendment overbreadth
claims. See generally McAuley v. University of Virgin Islands, 618 F.3d 232 (3rd
Cir. 2010) (standing); Peachlum v. City of York, 333 F.3d 429 (3rd Cir. 2003)
(ripeness); Ruocchio v. United Transport Union, 181 F.3d 376 (3rd Cir. 1999)
(mootness). Count III expressly alleges that Section 2937 is facially overbroad,
because it “authorizes the imposition of costs against candidates even if they do not
engage in fraud, bad faith or other misconduct.” JA 49 (Comp. ¶ 70). The District
Court was therefore required to apply a more relaxed standard in analyzing the
Minor Parties’ standing to assert that claim. It failed to do so.
Despite the District Court’s clear error in ruling on Count III, the Secretary
contends that its “approach was entirely reasonable,” because its opinion otherwise
18
“would have been unnecessarily long and repetitious.” Sec. Br. at 30. But the
potential length of an opinion cannot excuse a court’s application of an improper
standard. The Secretary also asserts, in a footnote, that the District Court’s error in
ruling on Count III was “harmless,” because a facial challenge is “difficult” to
mount successfully. Sec. Br. at 29-30 n.19. Once again, however, the possibility
that a claim might not succeed cannot excuse a court’s error in disposing of it.
Furthermore, the District Court’s error was not harmless. The District Court
dismissed Count III for the same reason that it dismissed Count I and Count II – it
concluded that the Minor Parties failed to allege an injury to themselves that is
sufficiently concrete and particular. JA 16-17. In the First Amendment overbreadth
context, by contrast, parties asserting facial challenges have standing even “where
their own rights of free expression are not violated.” McAuley, 618 F.3d at 238. As
a matter of law, therefore, the District Court’s skepticism toward the Minor Parties’
allegations of injury should not have deprived them of standing to assert their
Count III claim.
Accordingly, the District Court should be reversed for the additional reason
that it improperly dismissed the Minor Parties’ Count III claim.
19
CONCLUSION
For the foregoing reasons, the decision of the District Court should be
reversed, and this case should be remanded for further proceedings.
Dated: December 3, 2013 Respectfully submitted,
/s/ Oliver B. Hall
Oliver B. HallCENTER FOR COMPETITIVE DEMOCRACY1835 16th Street NW, Suite 5Washington, D.C. 20009(202) 248-9294 (ph)(202) 248-9345 (fx)[email protected]
CERTIFICATE OF BAR MEMBERSHIP
The undersigned hereby certifies pursuant to Third Circuit Local Appellate Rule 46.1(e) that the attorney whose name appears on the foregoing brief, Oliver B. Hall, is a member of the bar of this Court.
/s/ Oliver B. HallOliver B. Hall
20
CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a) AND L.A.R. 31.1
This brief complies with the word limit requirements of F.R.A.P. 32(a) because:
a. The brief contains no more than 7,000 words, and is prepared in Times New Roman, 14 Point Font.
This brief complies with the electronic filing requirements of L.A.R. 31.1(c) because:
a. The text of this electronic brief is identical to the text of the paper copies;
b. AVG Anti-Virus version 2014 has been run on the file containing the electronic version of this brief and no viruses have been detected.
/s/ Oliver B. HallOliver B. Hall
CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of December 2013, I served a copy of
the foregoing Reply Brief of Appellant, on behalf of all Appellants, by the Court’s
CM/ECF system upon the following:
Claudia M. TesoroOffice of the Attorney General of Pennsylvania21 South 12th Street, Third FloorPhiladelphia, PA 19107
Counsel for Appellees Carol Aichele, Jonathan M. Marks and the Attorney General of Pennsylvania
/s/ Oliver B. HallOliver B. Hall